Insurer Not Responsible|for Hepatitis C Lawsuits

MINNEAPOLIS (CN) – Insurance coverage is not available to an organization that credentialed a technician who transmitted hepatitis C to hospital patients, a federal judge ruled. The American Registry of Radiologic Technicians (ARRT) faces more than 25 lawsuits in New Hampshire from patients at the Exeter Hospital who claim that they contracted hepatitis C from a certified cardiovascular technician, David Kwiatkowski, who they say refilled syringes with saline solution after injecting himself with the painkiller fentanyl. The patients claim ARRT was negligent in its investigation and eventual certification of Kwiatkowski, and should have known his drug use was a threat to public safety. Assurance Co. of America initially represented ARRT in the lawsuits but filed then filed a suit on the basis of policy exclusions for “professional services.” Though ARRT argued that its investigation and subsequent certification of Kwiatkowski were performed “by people without specialized skill or training” and therefore were not “professional,” U.S. District Judge Ann Montgomery disagreed Monday. In a 25-page award of partial summary judgment to the insurer, Montgomery focused on an incident in which Kwiatkowski was found passed out in an Arizona hospital bathroom with a syringe in the toilet. The man was not punished and had his certification renewed the following year. “The investigatory process included at least two discrete instances where professional judgment was exercised,” Montgomery wrote. “First, the ethics department’s ‘no action’ decision was predicated on the results of the department’s own investigation. Even if, as ARRT claims, the investigation was a limited examination into Kwiatkowski’s alleged ethical violation, ARRT is unable to show the ethics department’s decision was a pro forma result reached on the basis of an automatic or otherwise perfunctory analysis. To the contrary, the individualized inquiry into the Kwiatkowski incident necessitated at least a modicum of decision-making unique to his personal situation.” She continued: “Second, the ethics department’s ‘no action’ recommendation was reviewed by the ethics committee, the body vested with the final decision-making authority for all alleged ethical violations. The ethics committee, at the time relevant here, was comprised of three ARRT-certified radiologic technicians and a doctor of medicine. The ethics committee’s decision, while shaped by the ethics department’s recommendation, was again not a ministerial or mechanical decision. ARRT is unable to conclusively show the ethics committee’s review was cursory or simply a rubber stamped approval of the ethics department’s recommendation.” ARRT also argued that its umbrella policy with Assurance provides coverage for the lawsuits, because the policy’s professional services exclusions mention “members” and not “registrants.” The argument didn’t move Montgomery. Though “it is true that ARRT does not have members,” Montgomery said that “for all practical purposes ARRT’s registrants function in the same manner as members.” Differences between “members” and “registrants” are purely semantic, the judge found. “Accepting ARRT’s argument unduly emphasizes form over function,” Montgomery wrote. “Their position would allow coverage to be defeated simply by altering the name to a synonym other than the term mentioned in the policy. This would be improper. The correct analysis must drive at the function of the collection of individuals, not simply what they are called. Any distinction between a member and a registrant is a distinction without a difference.” Kwiatkowski is also suspected of infecting patients at other hospitals during his work as a traveling technician, leading to at least one other class action . The Justice Department announced that he was sentenced in New Hamsphire to 39 years in prison “for his conduct in causing a widespread Hepatitis C outbreak in numerous states.”

CORRECTION: An earlier version of this article incorrectly described the findings of the court. The Dec. 1 ruling that this article describes makes no finding about whether any investigation by American Registry of Radiologic Technicians was adequately conducted. It found only that claims against the registry relating to the technician arose from professional services rendered by the registry, thus triggering an insurance-policy exclusion. Courthouse News regrets the error.